or rather directly cases of trespass de bonis asportatis, and cannot be made to embrace ordinary cases of trespass quare clausum fregit, or cases of tort generally, by attempting to connect with them as an incident the asportation of goods and chattels; much less can it be made to cover an indirect or consequential injury to the welfare or prosperity of a testator or intestate resulting from a fraud practiced upon him. There is one case from the Supreme Court of Virginia, cited by plaintiff, and relied on to sustain the right of action in the executor. It is the case of Lee v. Cooke's Executor, reported in Gilmer, 331. This was an action for mesne profits of land which had been recovered in ejectment. After issue made up in the cause, the defendant died. At a subsequent term of the court the executors appeared by attorney, and the cause was continued. At the term next ensuing, the cause was directed to be struck off the docket, the court thinking that the action abated by the death of the defendant. is this resemblance, that it might with justice be said of the case of Read v. Hatch, in comparison with this under our consideration, mutato nomine historia narratur de te. The former was an action for fraudulently recommending a trader as in good credit, by means whereof the plaintiff was induced to sell him goods on credit, and thereby sustained damage. This action was founded on the 7th section of the 93d chapter of the Revised Statutes of Massachusetts, which provides that actions of trespass and trespass on the case, for damage done to real or personal estate, shall survive. Pending the suit the defendant died, and the plaintiff moved to cite in his administrator. Shaw, Chief Justice, said, in pronouncing the judgment of the court: "The question whether the plaintiffs can cite in an administrator, and proceed with their action, depends on Revised Stats., ch. 93, sec. 7. It is contended that a false representation, by which one is induced to part with his property by a sale on credit to an insolvent person, by means of which he is in danger of losing it, is a damage done to him in respect to his personal property. But we are of opinion that this would be a forced construction. If this were the true construction, then every injury by which one should be subjected to pecuniary loss would, directly or indirectly, be a damage to his personal property. But we are of opinion that it must have a more limited construction, and be confined to damage done to some specific personal estate of which one may be the owner. A mere fraud or cheat, by which one sustains a pecuniary loss, cannot be regarded as a damage to perThe action is abated at common law, and not surviving by force of the Statute, must be deemed to stand abated.' This decision was reversed by the Supreme Court, the latter tribunal being of the opinion that the case was within the equity of the 64th section of the Virginia Statute, cap. 104. 1 Rev. Co., 390, and that the action, so far at least as regarded the mesne profits, did not die with the testator. The case is very succinctly given in the report, and is accompanied with no ar gument showing explicitly the grounds on which it was contested. It may have been regarded by the Supreme Court as resting upon an implied obligation or assumption, to pay or account for profits, ascertained by the judg-sonal estate. ment in ejectment to belong to the plaintiff, and therefore as partaking essentially of the character of a contract. Or, if in any sense the right of action could be understood as arising from the asportation by the defendant, it must be by such an acceptation of the phrase as will apply it to the mesne profits specifically, as being personal property belonging to the plaintiff, and actually injured by the testator of the defendant in his lifetime. If more than this is sought to be deduced from the case of Lee v. Cooke's Executor, the attempt would bring the case in conflict with that of Harris v. Crenshaw, and with the opinion of Green, Justice, in the case of Thueatt's Administrator v. Jones' Administrator, both more recent in Upon full consideration of the statutes of Virginia, and of the interpretation placed by the courts of that State upon those statutes, and of every analogy which can be applied from similar provisions elsewhere, we are of the opinion, that in the Circuit Court this action did not survive the death of the defendant, but abated upon the occurrence of that event; and we order it to be certified accordingly to the Circuit Court, in reply to the certificate of division. point of time, as well as more explicit in their THE UNITED STATES Ex relatione BEVinterpretation alike of the English Statute and ERLY TUCKER, Pl'ff in Er., that of Virginia. v. In cases analogous to the one befere us, or A. G. SEAMAN, Superintendent of Public which rather must be viewed as identical in their essential features, the principles hereinbefore deduced from the laws and decisions of Virginia have been directly affirmed. Thus, in the case of Coker v. Crozier, Ala. 369, it was ruled that in an action on the case for a fraud committed in the exchange of horses, upon the death of the defendant, the suit could not be revived against his personal representative, the rule of the common law forbidding such revival, and there being no statute of the State to authorize it. The case of Read v. Hatch, 19 Pick., 47, bears a still stronger resemblance to the case before us than does that just cited from the Supreme Court of Alabama. So exact, indeed, Printing. (See S.C., 17 How., 225-231.) Mandamus-when can issue to public officer. The Circuit Court of the District of Columbia cannot issue the writ of mandamus to an officer of the government in Washington in a case where discretion and judgment are to be exercised by the officer. It can be granted only where the act to be done is merely ministerial, and the relator is without any other adequate remedy. Such court should not interfere, by this summary process, in controversies between officers, in their respective employments, whenever differences of opinion as to their respective rights arise. If such differences cannot be adjusted by the authorities under which they are acting, an action at The rule applied to the distribution of public printing, by the Superintendent. was delivered by the Superintendent to the relator. On the 20th of March, 1854, the Commissioner communicated to both houses the agricultArgued Feb. 28, 1855. Decided Mar. 8, 1855. ural portion of his report, which each house on the same day ordered to be printed—the order IN ERROR to the Circuit Court of the United of the House of Representatives being, it is ad States for the District of Coluumbia, holden in and for the County of Washington. This was an application in the Circuit Court for the District of Columbia for a mandamus against Seaman, to compel the delivery of a certain document to him, as Printer to the Senate, to be printed. The court refused the mandamus prayed for, whereupon the petitioner brought the case here on a writ of error. A further statement of the case appears in the opinion of the court. Messsrs Samuel Chilton and Reverdy Johnson for plaintiff in error. Mr. C. Cushing, Att'y Gen., for the defendant in error. 1. The Circuit Court had no power to grant the mandamus asked for. mitted, first made. The relator claimed that the report of the Commissioner of Patents was but one document, within the meaning of the Act of Congress above referred to, and that by virtue of the order of the Senate of the 31st of January, 1854, he was entitled to the printing of the agricultural portion of the report, although the printing of this part was first ordered by the House of Representatives. The Superintendent, however, refused to deliver it, and the relator thereupon applied to the Circuit Court for the District of Columbia for a mandamus. to compel the delivery. That court was of opinion that it had not jurisdiction of the case, and refused the mandamus; and this writ of error is brought by the relator. The power of the Circuit Court of this dis McIntire v. Wood, 7 Cr., 504; Smith v. Jackson,1 Paine's C. C., 453, 445; M'Clung v. Silli-trict to issue writs of Mandamus to an officer of man, 6 Wheat., 598; 1 Kent's Com.,322,331; U. S. v. Worrall, 2 Dall., 384; U. S. v. Hudson, 7 Cr., 32; U. S. v. Coolidge, 1 Wheat., 415. 2. The duties devolved upon Seaman are not those of a mere ministerial character, and therefore the Circuit Court had no authority in relation to them. A decision on such questions is not reviewable, nor subject to the control of the Circuit Court. the government in Washington, has frequently been the subject of discussion in this court. It was before the court in Kendall v. U. S., 12 Pet., 524; in Decatur v. Paulding, 14 Pet., 497; in Brashear v. Mason, 6 How., 92; and again in Goodrich v. Guthrie, at the present term. The rule to be gathered from all of these cases is too well settled to need further discussion. It cannot issue in a case where discretion and judgment are to be exercised by the officer, and it can be granted only where the act required to be done is merely ministerial, and the relator without any other adequate rem Decatur v. Paulding, 14 Pet., 497; Brashear v. Mason, 6 How., 92; Goodrich v. Guthrie, 17 How., 284; McElrath V. McIntosh, 1 Law Rep., N. S., 390; Worthington v. Bick nell, 1 Bland, Ch., 186; Pascault v. The Comedy. missioners of Baltimore, 1 Bland Ch., 584; Bordley v. Lloyd, 1 Harr. & McH., 27: Run kel v. Winemiller, 4 Harr. & McH., 429 Ellicott v. The Lery Court, H. & J., 184; Williamson v. Carman, 1 G. & J., 184. Mr. Chief Justice Taney delivered the opinion of the court: The defendent in error, at the times hereinafter mentioned, was, and still is, Superintendent of Public Printing of the two houses of Congress; and the relator Printer to the Senate, and O. A. P. Nicholson Printer to the House of Representatives. By the Act of August 26, 1852, it is made the duty of the Superintendent to receive from the Secretary of the Senate, and the clerk of the House of Representatives, all matter ordered by Congress to be printed, and to deliver it to the public printer or printers. And the 12th section provides, that when any document shall be ordered to be printed by both houses of Congress, the entire printing of such documents shall be done by the Printer of that house which first ordered the printing. On the 31st of January, 1854, the Commissioner of Patents communicated to the Senate that portion of his annual report for 1853 which relates to arts and manufactures, which that body on the same day ordered to be printed. And on the following day, it was com municated to the House of Representatives, who passed a similar order. This communication Now, it is evident that this case is not one in which the Superintendent had nothing to do but obey the order of a superior authority. He had inquiries to make before he could execute the authority he possessed. He must examine evidence; that is to say, he must ascer tain in which house the order to print was first passed. He may, it is true, generally obtain this from the journals of the two houses, but yet he must examine them and compare the dates of the orders; and in this particular case it may even have been necessary to take oral testimony before he could determine the fact of priority, as the order was passed in each house on the same day. And after he had made up his mind upon this fact, it was still necessary to examine into the usages and practice of Con gress in marking a communication in their proceedings as a document, and to make up his mind whether separate communications upon the same subject, or on different subjects from the same office, when made at differant times, were according to the usages and practice of Congress, described as one document, or dif ferent documents, in printing and publishing their proceedings. He was obliged, therefore, to examine evidence, and form his judgment before he acted, and whenever that is to be done, is not a case for mandamus. Nor is there any reason of public policy or individual right which requires that this remedy should be extended beyond its legitimate bounds, in order to embrace cases of this de The trial below having resulted in a verdict and judgment for the defendant, the plaintiffs brought the case here on a writ of error. A further statement appears in the opinion of the court. scription; for it would embarrass the operations of Alabama, by the plaintiffs in error, on a cerof the Legislative and Executive Departments tain bill of exchange. of the government, if the court of this district was authorized to interfere, by this summary process, in controversies between officers, in their respective employments, whenever differences of opinion as to their respective rights may arise. If these differences cannot be adjusted by the authorities under which they are acting, an ordinary action at law would be an adequate remedy for any injury sustained. It seems to be supposed that the case of Kendall v. U. S. justified this application; but it is altogether unlike it. The award of the Solicitor of the Treasury, in that case, was an official act; he was the officer appointed by Act of Congress to settle that account, and determine the amount of credit to which Stokes was entitled, if to any; and all that the PostmasterGeneral was required to do was to enter it in the books of the Department when reported to him by the Solicitor of the Treasury. He was merely to record it. His duty under that Act of Congress was like that of a clerk of a court, who is required to record its proceedings; or of an officer appointed by law to record deeds, which a party has a right by law to place on record; or of the Register of the Treasury of the United States to record accounts transmitted to him by the proper accounting officers to be recorded. The duty in such cases is merely ministerial; as much so as that of a sheriff or marshal to execute the process of a court. This was the point decided in Kendall v. U. S., and the subsequent cases have all been decided upon the same principles. They are in no degree in conflict with it; on the contrary, they have followed it. But the case before us, for the reasons above stated, is unlike that of Kendall v. U. S., and the Circuit Court were right in refusing the The judgment must therefore mandamus. be aflirmed. Affirmed with costs. ALEXANDER DENNISTOUN, JOHN DENNISTOUN, WM. CRAIG MYLNE, AND WILLIAM WOOD, Partners under the style of A. DENNISTOUN & Co., Piffs. in Er., v. ROGER STEWART. (See S. C., 17 How., 606-608.) Protest-slight error in copy of note will not vitiate. A protest of a bill of exchange was indorsed on a copy of a bill agreeing in every particular with the original bill except that And. E. Byrne" was written Chas. Byrne." Held that the variance in the copy of the bill could not mislead, and was immaterial, and the protest was good. Sight mistakes, or variances, of letters, or even words, when the substance is retained, cannot and ought not to vitiate the protest. Argued Mar. 1, 1855. Ν Decided Mar. 8, 1855. IN ERROR to the Circuit Court of the United States for the Southern District of Alabama. This suit was brought in the Circuit Court of the United States for the Southern District | Mr. P. Phillips, for the plaintiffs error: Misdescriptions of notes and bills in notices of protest which do not and could not mislead the party, will not exonerate him from respon sibility. The language of this court in the case of Mills v. Bank of U. S., 11 Wh., 436, is: "The objection of misdescription may be disposed of in a few words. It cannot for a moment be maintained that any variance, however immaterial, is fatal to the notice. It must be such a variance as conveys no sufficient knowledge to the party of a particular note which has been dishonored. If it does not mislead him, if it conveys to him the real fact without any doubt, the variance cannot be material, either to guard his rights or avoid his responsibility. See, also, Bayley on Bills, 253; Smith v. Whiting, 12 Mass., 6; Mormon v. Bank of Alabama, 6 Port., 353; Reedy v. Seixas, 2 Johns. Cas.. 337; Bank of Rochester v. Gould, 9 Wend., 279; Croker v. Gestchell, 23 Ohio, 399; Tobey v. Lennig, 14 Pa. St. 485. The relative materiality of the protest and the notice, is shown by the fact that the omission to state the former in the declaration, cannot be taken advantage of under a general demurrer; while omitting to state demand and refusal is bad after verdict. 1 Dane's Abr., Bills Exch., ch. 20, art. 11, secs. 9, 3:3 Johns., 202; Doug., 679, 683,684; Murray v. Clayborn, 2 Bibb., 301. Mr. Justice Grier delivered the opinion of the court: The plaintiffs declared against the defendant as drawer of a bill of exchange by the name and style of James Reid & Co., of which the following is a copy: MOBILE, Sept. 9, 1850. No. £4,417 14s. 11d. st'g. Sixty days after sight of this first of exchange (second and third unpaid), pay to the st'g. value received, and charge the same to ac order of ourselves, in London, £4,417 14s. 11d. count of 1,058 bales cotton per Windsor Castle.' Your obedient servants, Pr. pro JAMES REID & CO., WM. MOULT, JR. TO HY. GORE BOOTH, ESQ., Liverpool. Acceptance across the face of the bill. Seventh October, 1850. Accepted for two thousand five hundred and seventy-one pounds eighteen shillings and seven pence, being balance unaccepted for acpt. 1,058 bf. cotton, pr. Windsor Castle, payable at Glyn & Co. Pr. pro HENRY GORE BOOTH, AND. E. BYRNE. Due 9 Decem. Indorsed: Pay Messrs. A. Dennistoun & Co., or order. Pr. pro JAMES REID & Co., WM. MOULT, JR." After reading this bill with its indorsements, the plaintiff offered in evidence a regular protest, indorsed on a copy of a bill agreeing in every particular with the above, except that for And. E. Byrne" was written "Chas. Byrne." The defendant objected to the reading of the protest in evidence, because it did not describe the bill of exchange produced by the plaintiffs, but a different bill. The court sustained this objection and excluded the protest from the jury, which is the subject of the first bill of exceptions. A protest is necessary by the custom of merchants in case of a foreign bill, in order to charge the drawer. It is defined to be in form "a solemn declaration written by the notary under a fair copy of the bill, stating that the payment or acceptance has been demanded and refused, the reason, if any, assigned, and that the bill is therefore protested. A copy of the bill, it is said, should be prefixed to all protests, with the indorsements transcribed verbatim. 1 Pardess., 444; Chit. Bills, 458. However stringent the law concerning mer cantile paper, with regard to protest, demand and notice may appear, it is nevertheless founded on reason and the necessities of trade. It exacts nothing harsh, unjust or unreasonable. A protest, though necesessary, need only be noted on the day on which payment was refused. It may be drawn and completed at any time before the commencement of the suit, or even before the trial, and consequently may be amended according to the truth, if any mistake has been made. "It cannot be, for a moment, maintained that every variance, however immaterial, is fatal. It must be such a variance as conveys no sufficient knowledge to the party of the particular note which has been dishonored. If it does not mislead him, if it conveys to him the real fact, without any doubt, the variance cannot be material, either to guard his rights or avoid his responsibility.' In the case before us the protest had an accurate copy of every material fact which could identify the bill-the date, the place where drawn, the amount, the merchandise on which it was drawn, the ship by which it was sent, the balance on the cotton for which it was accepted, the names of drawers, acceptor, indorsers; in fine, eveything to identify the bill. The only variance is a mistake in copying or deciphering the abbreviations and flourishes with which the christian name of the acceptor's agent is enveloped. The abbreviation of "And." has been mistaken for Chas., and the middle letter "E." omitted. The omission of the middle letter would not vitiate a declaration or indictment. Nor could the mistake mislead any person as to the identity of the instrument described. We are of opinion, therefore, that the objection made to this protest," that it does not describe the bill of exchange produced, but a different bill," is not true in fact, and should have been overruled by the court. This renders it unnecessary for us to notice the offer of testimony to prove the indentity, which was overruled by the court. The judgment of the Circurt Court is reversed, and venire de novo awarded. The judgment of the Circuit Court reversed, with costs, and cause remanded to the said Circuit Court, with directions to award a venire acias de novo. The copy of the bill is connected with the instrument certifying the formal demand by the public officer as the easiest and best mode of identifying it with the original. Mercantile paper is generally brief, and without the verblage which extends and enlarges more formal legal instruments. Hence, it is much easier to give a literal copy of such bills, than to attempt to identify them by any abbreviation or description. The amount, the date, the parties JACK T. GRIFFIN AND WIFE, Plaintiff's in and the conditions of the bill, form the substance of every such instrument. Slight mistakes, or variances of letters, or even words, when the substance is retained, cannot and ought not to vitiate the protest. A lost bill may be protested, when the notary has been furnished with a sufficient description, as to date, amount, parties, &c., to indentify it. In indictments for forgery it is not sufficient to state the substance and effect" of the instrument; it must be laid according to the tenor or exact letter; but the law merchant demands no such stringency of construction. The sharp criticism indulged when the life of a prisoner is in jeopardy cannot be allowed for the purpose of eluding the payment of just debts. It is unnecessary that a copy of the protest should be included in the notice to the drawer and indorsers. The object of notice is to inform the party to whom it is sent that payment has been refused by the maker, and that he is held liable. Hence, such a description of the note as will give sufficient information to identify it, is all that is necessary. What was said by Mr Justice Story in delivering the opinion of this court in Mills v. The Bank of the United States, with regard to variances and mistakes in notices, will equally apply to protests: Error, v. JAMES Y. REYNOLDS. (See S. C., 17 How., 609-612.) Action on covenant of warranty-evidencedamages-wife of grantor not liable on corenant-misjoinder. In an action for breach of covenent of warranty in deed, a judgment and execution, in a suit in ejectment for the land, commenced a few days after the date of the deed, against plaintiff's grantor, and which resulted in a judgment against him, which was followed by a writ of possession which was returned executed, is evidence to establish the existence of an outstanding paramount title at the date of the deed: although the plaintiff here was called by the plaintiff in the ejectment suit as a witness. the Probate Court of Alabama, where it had been A copy of a deed of trust from the records of recorded, was improperly admitted, no evidence to account for the original being given, there being no law in Alabama authorizing the use of copies. The measure of damages is the loss actually sustained by the eviction from the land for which the title has failed, not exceeding the consideration paid, interest, and expenses of suit. The deed in which the warranty was contained NOTE-Obligation of married woman as surety or guarantor for her husband or others. Rights as creditor of her husband. See note to Bien v. Heath, 6 How., 228. was proper evidence, it having been duly acknowledged, and the Act which authorizes the acknowledgment having provided that it shall be admitted in evidence in courts, without further proof. The wife of the grantor in the deed containing the covenant, is improperly joined. She could not, in Alabama, incur responsibilities for the title. But the objection of misjoinder is taken here for the first time, and the difficulty may be obviated by a nolle prosequi in the court below. Argued Mar. 1, 1855. Decided Mar. 8, 1855. ERROR to the District Court of the Unit Ied District of sissippi. This was an action of covenant, brought in the District Court for the Northern District of Mississippi, by the defendant in error, for a breach of warranty of title. The first trial below resulted in a verdict for the defendant. At the second trial below, the plaintiff obtained a verdict and judgment for $6,387.55; whereupon the defendant brought the case here on a writ of error. A further statement of the case appears in the opinion of the court. Messrs. Reverdy Johnson, Reverdy Johnson, Jr., S. Adams and James Phelan for the plaintiff in error: 1. The transcript of the deed from Oliver to James McCown, trustee for the Muggins Co., was improperly admitted in evidence. Hinde v. Vattier, 5 Pet., 398; Owings v. Hull, 9 Pet., 607; Summerville v. Stephenson, 3 Stewart (Ala.), 271; Thompson v. Ives, 11 Ala., 239. 2. The record in the case of Stoddard and Murphy v. Giffin, was improperly admitted in this case, as it was in evidence that Reynolds had in that case testified to a material point; and as the charge leaves it to the jury to settle the question of law as to the materiality or immateriality of the matter testified to, the court should have charged the jury that the plaintiff should show that his testimony was not to a material point; the presumption of law being that it was material. Case v. Reere, 14 Johns., 79. There are This ruling is assigned as error. authorities to the point that a record of a verdict and judgment cannot be used in favor of one who has contributed, by his evidence, to their recovery (18 Johns., 351; 4 Day, 431: 2 Hill & Cow., notes, 5); and one of the reasons assigned for confining the use of judgments to the parties and privies to them is, that a stranger may have produced them by his testimony. But the court is of opinion that this exception to the general rule, defining the par introduce an inconvenient collateral inquiry, and that no practical evil will result from maintaining the general rule unimpaired; and that it is important that the rules of evidence should be broad and well defined. The record in the present suit should have been admitted without any reservation. Blakemore v. Glamorganshire Canal Co., 2 C., M. & R., 133. There was some doubt upon the trial whether the issue of the defendant could be sustained by this evidence, and therefore he attempted to prove the existence of a paramount title in the lessors of the plaintiff in the ejectment suit. For this purpose he proved that the land had belonged to one Oliver, who in 1838 conveyed it to trustees to secure certain liabilities described in this deed, and that under this deed the property had been recovered: that the plaintiff's title came from Oliver, by sheriff's deeds, dated in 1841, and was inferior to that of the trustees. To prove the deed of trust, he introduced a copy from the records of the Probate Court in Alabama, where it had been recorded, but gave no evidence to ac count for the original. At the date of the copy there was no law in Alabama which authorized the use of copies in place of and without accounting for the original; and in relation to deeds of trust, the Registry Acts of the State merely required their registration for the purpose of giving notice, but did not assign any value to the record as Messrs A. H. Lawrence and Reuben evidence in courts, nor has any Statute of MisDavis for defendant in error. Mr. Justice Campbell delivered the opinion of the court: The defendant recovered a judgment in the District Court for damages sustained by the breach of a covenant of warranty of title to land in Alabama, contained in a conveyance of the plaintiffs to him. To establish the existence of an outstanding paramount title at the date of the conveyance, the defendant relied upon a judgment and execution in a suit of ejectment, commenced in Alabama for the land a few days after the date of the deed, to which the plaintiff (Griffin) was a defendant, and which resulted in a judgment against him, that was followed by a writ of possession, which is returned "executed." It appears from the evidence that the defendant was called by the plaintiff in the ejectment suit as a witness, though it is not clear to what fact in issue. Objection was made that the record of the suit could not be used under these circumstances. The District Court admitted the record, but referred it to the jury to determine whether his testimony was material, and if so, to disregard the evidence. sissippi enlarged the operation of the Statute of Alabama in that State. Branford v. Dawson, 2 Ala., 203; 5 Ala., 297; 13 Ala., 370. We think that this copy should not have been admitted. The deed from the plaintiff to the defendant, in which the warranty is contained, is an orig inal and absolute deed, duly acknowledged and recorded; and the Act which authorizes the acknowledgement also provides that it shall be admitted as evidence in courts without further proof. Clay's Dig., 161, sec. 1; Robertson v. Kennedy, 1 Stew., 245. We think that under the decisions of this court, this deed was properly admitted. Owings v. Hull, 9 Pet., 607. The court was requested by the plaintiffs "to instruct the jury that this is an action for damages, and that the plaintiff can only recover the value of the part lost, if a part only was lost at the time of the eviction, in proportion to the amount he paid," which charge was refused; and the jury was instructed "that if the plaintiff had not lost all the land conveyed to him by the defendant, then the jury might |